Let us also pray for a better government who do not have Ministers (and Deputy Ministers) who are just so evil and unreasonable. Torture - that is what the government of Malaysia is doing to the Herald, the Catholic Church and all Malaysian Catholics. They refuse to give any approval (or otherwise) until end of the year.

Of course, if the permit is not renewed, then the Catholic Church have a right to appeal to the Minister...and as such for an application submitted in July, should not an answer be given by now?

Deputy Home Minister Datuk Wan Ahmad Farid Wan Salleh, in an interview with Reuters yesterday, said the government was "still reviewing" The Herald's licence and was following "due process".

Let's also pray for greater JUSTICE and peace in Malaysia ...and the whole world. This PEACE that we want is not the peace of keeping quite...not rocking the boat...and just accepting all that is done. The peace that we strive for is TRUE PEACE... and for true peace to be there must first of all be justice and a respect for human rights.

Tuesday, December 23, 2008

While I was expecting some to join me and say NO to the government approved mandatory HIV-screening of Muslims (and maybe non-Muslims later on) before they can get married in Malaysia, I was shocked by an obviously ignorant response coming from the Pakatan Rakyat Menteri Besar of Perak...and thereafter to host of comments against what allegedly the Perak MB said.

Muslims planning to marry will have to undergo mandatory HIV screening from next year.

Deputy Prime Minister Datuk Seri Najib Tun Razak said it was worrying that HIV infection among Malaysian women had increased from 1.1% in 1990, to 5.02% in 1997 and to 16.3% last year.

What about mandatory HIV-screening of Muslims if they want to get married - which will be in effect come 1st January 2009 - as stated earlier by JAKIM. What does the civil society group say about that? What is the position of the various political parties?

There has been much comment in the press on the question of quarantining a HIV positive person, and the right of HIV-positive persons to marry. Generally, they were against any 'quarantining' and for the right to marry.

National Council of Women's Organisations deputy president Datuk Ramani Gurusamy said not allowing people with HIV to marry would be to infringe on their human rights....

...Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism president Datuk A. Vaithilingam said he was disappointed with Nizar's statement.

"My advice is for him to visit the Malaysian AIDS Council and spend at least two hours there. Get a good briefing for a better understanding of the disease."...

...She[Tenaganita director Irene Fernandez] said denying a HIV-positive person the chance to marry was also a violation of human rights and those who wanted to marry should instead be counselled on how to manage their marriage.

"This kind of response, after so many years, shows we are still a long way off in giving a more humane and dignified treatment to those with HIV."- New Straits Times, 22/12/2008 - Nizar slammed over HIV quarantine proposal

Only the MCA has come out against MANDATORY pre-marital HIV-screening...

Commenting on pre-marital HIV screening, MCA deputy president Datuk Seri Dr Chua Soi Lek said it should not be made mandatory.

“It gives people a false sense of security. You could be infected today, do the test and nothing happens. It doesn’t mean you don’t have HIV.

“It also infringes on human rights. There should not be any force involved in testing,” he told reporters after attending a karaoke contest here on Sunday.

Dr Chua, the former Health Minister, said the best way to prevent HIV infection was through education, dissemination of information and doing the screening voluntarily.- Star, 23/12/2008 - Mandatory testing is primitive, says Chang

The title of the Star report also suggests that GERAKAN is also against mandatory testing bout alas nothing in the report to support that contention.

I say that we should definitely increase the budget and efforts to educate persons about HIV and AIDs - so that we would not have such foolish proposals like 'quarantines'...

The perception that those who are infected with HIV cannot marry, have sex or even have children is wrong.

AIDS Action and Res­earch Group (AARG) convenor Assoc Prof Dr Ismail Baba (pic) said a person who is HIV-positive can still lead a normal life, get married and have children as long as they are given proper counselling and treatment.

It is shocking to find out that about 1,300 human beings, who are foreign nationals, died in custody over just the last SIX years...

ABOUT 1,300 illegal foreigners have died during detention in the past six years, Malaysia Nanban quoted Malaysian Human Rights (Suhakam) commissioner Datuk N. Siva Subramaniam as saying.

He said many of them died in immigration detention centres, prisons and police lockups because they were denied medical treatment at the right time.

He proposed that a doctor and a medical assistant be appointed in each detention camp and prison which should have the necessary facilities to transfer sick prisoners to hospitals during an emergency.

He said detention camps now have appointed doctors who make regular visits.

He also said that Suhakam had submitted a memorandum to the Government proposing the appointment of a doctor to visit police stations to monitor the health of suspects held in lockups. - Star, 18/12/2008 - 1,300 foreign detainees died due to neglect

No human being is 'illegal' - they may have come in and/or remained in Malaysia without the required documentation but let us not forget that we are dealing with human beings.

Really, we must be given more information as to how they died - were they beaten to death? Were the conditions of the detention centers the main factor that brought about their early death?

Was there any INQUESTS (Inquiry into the deaths) done to determine whether there was any criminality involved in the death? Was it because of negligence?

The numbers are really shocking - and mind you this fact has been revealed by SUHAKAM.

Let Malaysia not forget to its obligations to these 'undocumented' migrant workers, as is laid out in the Bangkok Declaration...

We, the Ministers and representatives of the Governments of Australia, Bangladesh, Brunei Darussalam, Cambodia, China, Indonesia, Japan, Republic of Korea, Lao PDR, Malaysia, Myanmar, New Zealand, Papua New Guinea, the Philippines, Singapore, Sri Lanka, Thailand, and Vietnam, as well as the Hong Kong Special Administrative Region (hereinafter referred to as "the participating countries and Region"), meeting at the invitation of the Royal Thai Government in Bangkok on 23 April 1999, on the occasion of the International Symposium on Migration, held on 21-23 April 1999, under the chairmanship of H.E. Bhichai Rattakul, Deputy Prime Minister of Thailand, to address the question of international migration, with particular attention to regional cooperation on irregular/undocumented migration:

1. Realizing that international migration is a complex phenomenon which is rooted in human history and is closely associated with social and economic aspirations of each country and region;

2. Recognizing that the process of globalization and liberalization, including the increasing interdependence of economies, has contributed to large flows of people in the Asia-Pacific region, thus providing both opportunity and challenge for governments in the region;

3. Noting that both the supply (push) factor and demand (pull) factor from concerned countries have led to the outflow of migrants from the countries of the region;

4. Being aware that international migration, particularly irregular migration, has increasingly become a major economic, social, humanitarian, political and security concern for a number of countries in the Asia-Pacific region;

5. Noting with concern that the ongoing financial and economic crisis in many Asian countries has led to rising unemployment and other social problems, and has had differing impacts on irregular migrants and on the countries of origin, transit and destination;

6. Noting further that the periodic natural disasters in some Asian countries badly affect their economies and lead to rising unemployment and irregular migration;

7. Gravely concerned by the increasing activities of transnational organized criminal groups and others that profit from smuggling of and trafficking in human beings, especially women and children, without regard to dangerous and inhumane conditions and in flagrant violation of domestic laws and international standards;

8. Underlining that comprehensive, coherent and effective policies on irregular/undocumented migration have to be formulated within the context of a broader regional framework based on a spirit of partnership and common understanding;

9. Noting that over 65 percent of the world’s poorest people live in the Asia- Pacific region, hence poverty and differences in level of development among countries in the region remain important causes of irregular migration;

10. Recognizing a need for international cooperation to promote sustained economic growth and sustainable development in the countries of origin as a long-term strategy to address irregular migration;

11. Noting that there is a number of international conventions and instruments dealing with humanitarian issues relating to migration;

12. Respecting the sovereign rights and legitimate interests of each country to safeguard its borders and to develop and implement its own migration/immigration laws, and also recognizing the obligations of the country of origin to accept its nationals back, and the obligation of the countries of transit and destination to provide protection and assistance where appropriate, in accordance with their national laws;

13. Recognizing the important role and contribution of regional consultative mechanisms, such as the Asia Pacific Consultations on Refugees, Displaced Persons, and Migrants, and the Manila Process, on issues relating to irregular migration;

14. Noting with appreciation the participation of countries from various regions, United Nations bodies and specialized agencies, intergovernmental organizations, as well as non-governmental organizations, in sharing their views and experiences in dealing with migration issues;

15. Noting also with appreciation the discussion papers prepared by the Institute for Population and Social Research, Mahidol University, and the International Organization for Migration (IOM), which provided useful points of discussion and recommendations for the management of irregular migration;

16. Acknowledging with gratitude the timely initiative of H.E. Dr. Surin Pitsuwan, Minister of Foreign Affairs of Thailand, the dynamic chairmanship of H.E. Bhichai Rattakul, Deputy Prime Minister of Thailand, as well as the excellent arrangements provided by the Royal Thai Government, with the valuable support of the IOM;

Declare as follows:

1. Migration, particularly irregular migration, should be addressed in a comprehensive and balanced manner, considering its causes, manifestations and effects, both positive and negative, in the countries of origin, transit and destination;

2. The orderly management of migration and addressing of irregular migration and trafficking will require the concerted efforts of countries concerned, whether bilaterally, regionally or otherwise, based on sound principles of equality, mutual understanding and respect;

3. Regular migration and irregular migration should not be considered in isolation from each other. In order to achieve the benefits of regular migration and reduce the costs of irregular migration, the capacity of countries to manage movement of people should be enhanced through information sharing and technical and financial assistance. In this context, UNITAR, UNFPA, and IOM, joint sponsors of the International Migration Policy and Law Course (IMPLC), are invited to hold, in the near future, a course for middle to senior government officials from the region;

4. A comprehensive analysis of the social, economic, political and security causes and consequences of irregular migration in the countries of origin, transit and destination should be further developed in order better to understand and manage migration;

5. As the causes of irregular migration are closely related to the issue of development, efforts should be made by the countries concerned to address all relevant factors, with a view to achieving sustained economic growth and sustainable development;

6. Countries of origin, as well as countries of transit and destination, are encouraged to reinforce their efforts to prevent and combat irregular migration by improving their domestic laws and measures, and by promoting educational and information activities for those purposes;

7. Donor countries, international organizations and NGOs are encouraged to continue assistance to developing countries, particularly the least-developed countries, in the region aimed at poverty reduction and social development as one means of reducing irregular migration;

8. The participating countries and region should be encouraged to pass legislation to criminalize smuggling of and trafficking in human beings, especially women and children, in all its forms and purposes, including as sources of cheap labor, and to cooperate as necessary in the prosecution and penalization of all offenders, especially international organized criminal groups;

9. The participating countries and Region should exchange information on migration legislation and procedures for analysis and review, with a view to increasing coordination to effectively combat migrant traffickers;

10. The countries of origin, transit and destination are encouraged to strengthen their channels of dialogue at appropriate levels, with a view to exchanging information and promoting cooperation for resolving the problem of illegal migration and trafficking in human beings;

11. Greater efforts should be made to raise awareness at all levels, including through public information campaigns and advocacy, of the adverse effects of migrant trafficking and related abuse, and of available assistance to victims;

12. Concerned countries, in accordance with their national laws and procedures, should enhance cooperation in ascertaining the identity of undocumented/illegal migrants who seemingly are their citizens, with a view to accelerating their readmission;

13. Timely return of those without right to enter and remain is an important strategy to reduce the attractiveness of trafficking. This can be achieved only through goodwill and full cooperation of countries concerned. Return should be performed in a humane and safe way;

14. Irregular migrants should be granted humanitarian treatment, including appropriate health and other services, while the cases of irregular migration are being handled, according to law. Any unfair treatment towards them should be avoided;

15. The participating countries and Region should each designate and strengthen a national focal point to serve as a mechanism for bilateral, regional and/or multilateral consultations and cooperation on questions of international migration;

16. A feasibility study should be conducted on the need to establish a regional migration arrangement, linked to existing international bodies, to provide technical assistance, capacity building and policy support as well as to serve as an information bank on migration issues for the countries in the Asia-Pacific region. The countries in the region are meanwhile encouraged to utilize and strengthen the already existing bilateral and multilateral arrangements;

17. The participating countries and Region will follow-up on the above mentioned issues of irregular migration at the political and senior official levels in ways which may be deemed appropriate;

18. This document shall be given the widest publicity and dissemination possible to encourage governments, non-governmental organizations, the private sector and civil society to join in a collective regional effort to alleviate the adverse effects of irregular migration and to prevent and combat trafficking of human beings, especially women and children.

Monday, December 22, 2008

Well, the Malaysian AIDs Council has come out against MANDATORY pre-marital HIV screening - and it would be good if the government-in-waiting could also come out with their position...or is it just the same as the BN government?

The Malaysian AIDS Council is against mandatory pre-marital HIV screening for all Muslim couples from next year, saying it would will further make HIV a disease to be feared and stigmatised and thus discourage individuals, especially those at risk of infection, from coming forward to be voluntarily tested.

It said while the pre-marital testing policy, meant to curb the rise in infections, would make HIV testing more broadly available and worthy of praise, the MAC could not support a move to remove the voluntary nature of the tests.

“We would like to once again reiterate that mandatory testing all Muslim couples before marriage is not the solution,” its president Prof Dr Adeeba Kamarulzaman said in a statement today.

She gave four social and medical reasons for the council’s position:

» pre-marital testing is a one-off test while the risk of acquiring HIV is potentially life long. A negative test before marriage does not guarantee that the individual or his/her partner will remain negative thereafter if the person continues to put him or herself at risk of HIV through their sexual activities or injecting drug use. A negative HIV result at the time of marriage may lead to a false sense of security in both parties throughout the marriage.

» mandatory HIV testing has been shown to have a limited impact in controlling the spread of HIV infection without specific interventions being undertaken to prevent transmission of these infections.

» it is highly unlikely that the confidentiality of the test results can be guaranteed. Because of the high level of stigma and discrimination that exist against HIV positive individuals, those diagnosed with HIV and their families are frequently rejected and ostracised within the community they live.

» Disclosure of a positive HIV result must be followed up with proper counselling. It fears that those charged with implementing this policy nationwide, including the religious officers, and even health care workers have been adequately trained and prepared for this task.

In Johor Baru today, Health Minister Datuk Liow Tiong Lai said the compulsory screening was not meant to stop Muslim couples from marrying, but to ascertain their health standard. He said that with 80,938 HIV cases recorded until last year, the move was necessary to prevent its spread. - Sun, 21/12/2008 - AIDS Council rejects compulsory HIV screening

It really would be good if the Pakatan Rakyat do come out with their position on the various different matters - so that we, the people of Malaysia, would be able to consider the differences and the similarities with the present BN coalition government.

We would like to know what differences that we can look forward to when there is a change of the Federal government.

Our government has just gone overboard when they (i.e. in the person of the DPM Mohd Najib Razak) have accepted the position that it is compulsory for Muslims to go for pre-nuptial HIV screening before they get married. This was first stated by JAKIM.

Malaysia will urge non-Muslim couples to take voluntary pre-nuptial HIV screening tests before tying the knot due to high levels of infection among married women, the deputy premier said.

MCPX

Such screening is already compulsory for Muslims as part of a pre-marital course but there is no such requirement for non-Muslims.

While new HIV infections dropped to 3,452 in 2008, compared to 6,756 in 2003, infections among women through normal sexual intercourse rose from 5.02 percent of total cases in 1997 to 16.3 percent last year...

"I think for the non-Muslims, we should go on the basis of encouraging them on voluntary basis to subject themselves to be tested and screened for HIV," Deputy Premier Najib Razak told Bernama late Saturday. - Malaysiakini, 21/12/2008, Go for voluntary HIV screening, non-Muslim couples told

So, will we also be looking at compulsory disclosure of genetically-related diseases in one's family before one is allowed to marry. After all, there is technology now available, that will be able to tell you the percentage that your child will be affected by such ailments...

Would it also be one day compulsory for couples who want to marry to do medical tests to determine whether they are 'fertile' and have the capacity of being able to have children?

What about a person's right to privacy? What about a persons freedom of choice? Not every person wants to do tests to even know for themselves what diseases or disorders he has. Not every person wants to know whether he/she is HIV positive or not?

It is OK for the government of the day to recommend...encourage...or even educate persons of the risks... but NOT to make it mandatory to undergo medical testing before one is allowed to marry.

Education - that is what is really lacking...and the government is not using the media and other means to do the necessary education of persons...

Come...come, nowadays many are happily be engaging in pre-marital sex...and possibly with multiple partners...So, really is pre-marriage compulsory medical screening going to be at all effective at all?

Najib also comes out looking like a 'sexist' ...

"If you look at it from the society's point of view as well as the point of view from the individuals concerned... it would be to their interest as well to know whether their would-be-husbands... are free from HIV or not."- Malaysiakini, 21/12/2008, Go for voluntary HIV screening, non-Muslim couples told

It is both the 'would-be-husbands' or the 'would-be-wives' or both of them who could be HIV positive. Najib's statement that assigns blame to only men...is surely 'sexist' and is also an indication of his ignorance on the subject.

Sunday, December 21, 2008

On 18 December 2007, the UN General Assembly endorsed a resolution calling for "a moratorium on executions" by an overwhelming majority: 104 votes in favour, 54 against and 29 abstentions. - RESOLUTION 62/149

On 18 December 2008, the United Nations General Assembly adopted a second resolution calling for a moratorium on the use of the death penalty.

106 countries voted in favour of the draft resolution, 46 voted against and 34 abstained. This resolution was first discussed and voted upon in the Third Committee of the UNGA on 20 November 2008. A range of amendments proposed by a small minority of pro-death penalty countries were overwhelmingly defeated in the Third Committee of the UNGA, and the draft resolution was adopted by 105 votes in favour, 48 against and 31 abstentions.

The increased support for this resolution is yet further evidence of the worldwide trend towards the abolition of the death penalty.

The UNGA - the main UN deliberative body with universal membership - will continue to debate and make recommendations on the issue of the death penalty at the end of 2010.

BUT sadly, Malaysia demonstrated a disrespect to both United Nations General Assembly Resolution of December 2007 (Resolution 62/149), and the recent 18th December 2008 Resolution - both of which called for a MORATORIUM on executions - by proceeding with an execution on 19th December 2008 at 6.05 am.

Hanafi Mat Hassan, the bus driver convicted in the murder and rape of computer engineer Noor Suzaily Mukhtar was hanged at the Kajang prison this morning.

MCPX

A prison spokesperson confirmed that Hanafi, 40, was hanged at 6.05am.

Kajang Hospital also confirmed the time of death and that his body had been collected by his relatives from Kampung Renik, Bachok, Kelantan at 3pm. - Malaysiakini, 19/12/2008 Noor Suzaily's killer hanged

The report of the execution was also carried in the New Straits Times..

Noor Suzaily Mukhtar (left) was raped and murdered eight years ago; her killer Hanafi Mat Hassan was hanged at the Kajang Prison in Selangor

KANGAR: "If I had the chance, I would have wanted to be the person who presses the switch to hang him when the orders were given."

These were the words of Mukhtar Ibrahim, 63, the father of Noor Suzaily Mukhtar, a computer engineer, who was raped and murdered eight years ago.

Her murderer, Hanafi Mat Hassan, was hanged at 6am yesterday at the Kajang Prison in Selangor.

"I am no one and in no position to forgive him (Hanafi). Only God can forgive him," said a tearful Mukhtar at his house in Taman Suraini yesterday.

"However, I am grateful to God that justice has taken place, even if only after a long time. Eight years is such a long time when one is waiting for justice to take place.

"I was waiting to receive the news of Hanafi being hanged from the prison authorities but they did not inform me. However, I am grateful to the New Straits Times and Berita Harian reporters who brought the news to me." - New Straits Times, 20/12/2008 - Noor Suzaily murder case: Long eight-year wait for justice

Shame on you Malaysia for ignoring the UN General Assembly Resolutions - Remember, this was not an undemocratic 'Security Council' resolutions - but General Assembly Resolution, and Malaysia's failure to comply is embarrassing - and a demonstration also of how much it values the principles of democracy... and majority decision of the peoples of the world.

The text of the resolution 62/149 is as follows:

The General Assembly,

Guided by the purposes and principles contained in the Charter of the United Nations, Recalling the Universal Declaration of Human Rights,[1]the International Covenant on Civil and Political Rights[2]and the Convention on the Rights of the Child,[3]

Recalling also the resolutions on the question of the death penalty adopted over the past decade by the Commission on Human Rights in all consecutive sessions, the last being its resolution 2005/59,[4]in which the Commission called upon States that still maintain the death penalty to abolish it completely and, in the meantime, to establish a moratorium on executions,

Recalling further the important results accomplished by the former Commission on Human Rights on the question of the death penalty, and envisaging that the Human Rights Council could continue to work on this issue,

Considering that the use of the death penalty undermines human dignity, and convinced that a moratorium on the use of the death penalty contributes to the enhancement and progressive development of human rights, that there is no conclusive evidence of the death penalty's deterrent value and that any miscarriage or failure of justice in the death penalty's implementation is irreversible and irreparable,

Welcoming the decisions taken by an increasing number of States to apply a moratorium on executions, followed in many cases by the abolition of the death penalty,

1. Expresses its deep concern about the continued application of the death penalty;

2. Calls upon all States that still maintain the death penalty to:

(a) Respect international standards that provide safeguards guaranteeing the protection of the rights of those facing the death penalty, in particular the minimum standards, as set out in the annex to Economic and Social Council resolution 1984/50 of 25 May 1984;

(b) Provide the Secretary-General with information relating to the use of capital punishment and the observance of the safeguards guaranteeing the protection of the rights of those facing the death penalty;

(c) Progressively restrict the use of the death penalty and reduce the number of offences for which it may be imposed;

(d) Establish a moratorium on executions with a view to abolishing the death penalty;

3. Calls upon States which have abolished the death penalty not to reintroduce it;

4. Requests the Secretary-General to report to the General Assembly at its sixty-third session on the implementation of the present resolution;

5. Decides to continue consideration of the matter at its sixty-third session under the same agenda item.

[1]Resolution 217 A (III).

[2]See resolution 2200 A (XXI), annex.

[3]United Nations, Treaty Series, vol. 1577, No. 27531.

[4]See Official Records of the Economic and Social Council, 2005, Supplement No. 3 and corrigenda (E/2005/23 and Corr.1 and 2), chap. II, sect. A.

Thursday, December 18, 2008

For your information, nowadays the Parliament Website have become more efficient - and we can all get a look at the Bills being tabled - just go http://www.parlimen.gov.my/eng-bills.php,and you can get access to the Bills BUT sadly, the Acts of Parliament section is lacking. I have copied and pasted the JUDICIAL APPOINTMENTS COMMISSION BILL 2008, which I obtained from this website below.

Anyway, just to let all know what the Bar Council thinks about the said Bill:-

A. Overview

In considering the Government’s proposals under the Judicial Appointments Commission Bill 2008 (“JAC Bill”), it is important to bear in mind the underlying purpose and principles behind the setting up of a Judicial Appointments Commission (“JAC”). They are as follows:

•

To recognise and maintain the separation between the Judicial, Executive and Legislative branches of Government;

•

To ensure transparency at all levels of the appointments process;

•

To ensure representation of various stakeholders in the judicial system on the JAC;

•

To ensure meaningful consultation with other concerned parties in the judicial appointments process;

•

To ensure accountability of those involved in the process; and

•

To clearly define criteria for the selection and promotion of judges.

These purposes have been culled from the lessons of our own history. Malaysia’s experience from such events as the 1988 Judicial Crisis and the 2008 Royal Commission on the Video Clip, has taught us that part of what ails our current system stems from (i) Executive subjugation of the Judiciary; (ii) the pivotal role granted to the Executive in relation to judicial appointments (iii) the lack of transparency and accountability in the judicial appointments process and (iv) there being too much power and discretion being placed in the hands of too few.

The scope and operation of a judicial appointments commission must therefore be founded on the principles stated above.

Whether these principles have been adhered to in the Government’s Bill can be assessed from such key factors as the powers of the Prime Minister, the composition and functions of the JAC, the appointing body for members of the JAC, how the selection process is conducted (including matters such as selection criteria and the JAC’s quorum and voting requirements) and whether the Prime Minister is ultimately bound to select from within the candidates shortlisted by the JAC or may independently select his own candidate.

The Malaysian Bar welcomes the move to set up a judicial appointments commission but the Bill as it presently stands does not promote the principles and purposes outlined above. The following are the concerns of the Malaysian Bar:

•

Far from preserving the separation of powers between the executive and the judiciary, the JAC Bill in fact seeks to statutorily reinforce and validate the power of the executive in key aspects of the judicial appointments process. The non ex-officio members of the JAC are to be appointed at the sole discretion of the Prime Minister. As the Prime Minister appoints 5 members of the JAC, he controls the appointment of the majority of the JAC. The JAC Bill leaves open the possibility that the Prime Minister may appoint politicians and former members of the Executive or the public services. The Prime Minister also has sole power to allocate funds and determine allowances to the JAC. The Prime Minister has the sole power to remove any ex-officio member of the JAC without assigning reason. In addition, the Prime Minister can regulate the manner in which the judicial selection process is carried out as well as the criteria for selection.

•

The Bill provides for legislative powers to be vested in the Prime Minister in that he may, albeit for the first two years, change the provisions of the JAC Bill.

•

Further, it is arguable that the Prime Minister is not limited to choosing a candidate from among those shortlisted by the JAC but may in fact appoint someone who has not gone through the JAC’s vetting and selection process. The Bill is vague and imprecise in this regard. Under the Bill, it is proposed that candidates be vetted by the JAC, which will then put forward either two or three names (depending on the type of vacancy) to the Prime Minister. For instance, clause 27 provides that the Prime Minister may call for two further names to be submitted to him. Thereafter, clause 28 does not explicitly state that the Prime Minister must recommend only those candidates proposed by the JAC to the Yang Di Pertuan Agong. The Bill should make clear that the Prime Minister can only recommend such candidates as emerge from the JAC’s deliberations.

•

The JAC Bill in effect allows the Prime Minister to require to JAC to put forward four candidates for an appointment to an office bearer position, the Federal Court and Court of Appeal. In reality however, as these are senior positions in the judiciary, there are only likely to be a handful of qualified candidates. In respect of an appointment to the position of Chief Justice for example, there are only likely to be one or two suitably qualified candidates. In very rare cases, there may be three such candidates. Allowing the Prime Minister to call for up to four names for the position of Chief Justice, will render the JAC’s function as a vetting and selection body redundant. In effect, all names being considered by the JAC will have to be submitted to the Prime Minister. The JAC may even have to put forward the name of a less qualified candidate or one that was not initially being considered in order to fulfil the Prime Minister’s request.

•

The various stakeholders are not represented on the JAC. The JAC Bill proposes that the JAC be comprised two groups: judges and “eminent persons”. The appointment of eminent persons is in the hands of the Prime Minister although there is a consultation process with various stakeholders, which we welcome. However, the Prime Minister is given the absolute power to remove any of the eminent persons without assigning a reason. Apart from affecting the independence of the eminent persons, this places far too much power in the hands of the Prime Minister.

•

Although the stakeholders are consulted on the appointments of eminent persons, there is a glaring absence of any obligation on the JAC thereafter to consult with them in conducting the selection process for judicial vacancies. The Bill ought to impose such an obligation.

•

The Prime Minister is not obliged to make his reasons for the rejection of a candidate known to the JAC. The Prime Minister is in effect empowered to reject the initial recommendations of the JAC and require that the JAC submit two further names to him.

•

The Prime Minister is given unfettered power to amend the provisions of the Act by Gazette notification in the first two years after its coming into force.

•

One of the key revelations of the Lingam enquiry was that manoeuvring for judicial appointments was facilitated by the placement of too much power in the hands of too few. The JAC Bill repeats the mistake, making the system once again overly dependent on the integrity of one person, that is, the Prime Minister. We recommend instead that the following powers given to the Prime Minister under the JAC Bill, be given to a parliamentary committee established for this purpose:

(i)

Appointment of ‘eminent persons’ to the JAC.

(ii)

Determination of allowances for the JAC.

(iii)

Removal / dismissal of JAC members.

The totality of the issues set out above must be addressed so that the proposed JAC will meet the principles reflected in clause 2 of the JAC Bill namely to defend the independence of the judiciary and to ensure that public interest is properly represented in matters relating to the judiciary. In the final analysis, the Government’s proposal must not be seen to be legalising and reinforcing the control of the Executive over the judicial appointments process.

Constitutional Amendments Required

To be completely effective, the JAC Bill requires a Constitutional amendment. The following points must be noted.

The Constitution states, in Article 122B that before tendering his advice for an appointment to the positions of President of the Court of Appeal, Chief Judges of the High Court, judges of the Federal Court, judges of the Court of Appeal and judges of the High Court, the Prime Minister must consult the Chief Justice. Before advising on the appointment of Chief Judge of the High Court, the Prime Minister must consult the Chief Judge of each of the High Courts and if the appointment is in respect of the High Court of Sabah and Sarawak, the Prime Minister must consult the Chief Minister of each of those states. For non-office bearer positions in the Federal Court, Court of Appeal and High Court, the Prime Minister must consult with the respective head of that particular Court (i.e. the Chief Justice of the Federal Court, President of the Court of Appeal and the Chief Judge of High Court respectively).

The JAC is now a parallel process to the constitutional consultation process since it is envisaged that the JAC will vet and select candidates to be recommended to the Prime Minister, and bearing in mind that the respective office bearers of the judiciary are constituent members of the JAC.

The Constitutional process will always override any legislative process.

A further incongruity arises where for example, the Chief Justice in deliberations as a member of the JAC has disagreed with the JAC’s choice for appointment to a judicial vacancy. Under the Constitution, the Prime Minister must still consult the Chief Justice who thus effectively has a ‘second bite at the cherry’. In other words, the Chief Justice has the opportunity to express his personal view (contrary to the JAC’s position), thus undermining the decision of the JAC.

For this reason, Constitutional amendments are required and it is best that such amendment be made prior to the passage of this Bill.

A further reason for a Constitutional amendment is that the consultation process envisioned under the JAC Bill as well as the Bar Council’s alternative proposals (set out under Part B, paragraph 16 below) will effect a change in the Prime Minister’s prerogative. The current Constitutional provisions allow the Prime Minister to freely explore any number of candidates for each judicial vacancy. He must consult with certain office bearers of the judiciary, but he need not accept their views on the candidates. This unfettered prerogative of the Prime Minister will be checked once a JAC is introduced, with a Constitutional amendment.

Conclusion

The purpose of these comments is to give a broad overview of what the Malaysian Bar views as significant issues that must be addressed in the JAC Bill. It does not mean that the Malaysian Bar does not support the setting up of a JAC. We support the positive aspects of the Bill for example provisions which spell out criteria for the appointments. However, if there was truthful recognition of the crisis that the nation has endured and genuine effort to address the problem, there is no reason why amendments cannot be made to the Bill so as to make it effective. We strongly urge that the Bill be referred to a select committee of Parliament so that more views are canvassed, including views from the judiciary, before this important Bill is passed.

Certainly, more time is required and we are positive that with further consideration, Parliament will be able to establish a JAC that upholds the purposes and principles reflected in Clause 2 of the JAC Bill.

B. Comments on Specific Provisions of the JAC Bill

Clause 5:

1.

We cannot see a rationale for the inclusion of a judge of the federal court on the JAC, and no reason is proffered in the Explanatory Statement. The federal court judge may not be wholly independent and fearless because such a judge is subordinate to the office bearers of the judiciary. He may also have aspirations for higher office and this if of course a matter within the purview of the JAC. It is possible that he may, whether consciously or otherwise, subordinate his views to that of the office bearers of the judiciary sitting on the JAC. We therefore disagree with the inclusion of a federal court judge as a member of the JAC. As an alternative, the JAC Bill could instead increase the number of eminent persons on the JAC to 5.

2.

The selection of “eminent persons” leaves open the possibility that former members of the executive and public service, members of parliament and state assemblies and other politicians may sit on the JAC. It is our position that these former members ought to be expressly excluded.

3.

In respect of the Prime Minister’s role in the appointment of non ex-officio members of the JAC, the purpose of a JAC is to make the judicial appointments process independent of the Executive and to balance the role of the Prime Minister in the process. It would defeat this purpose if the Prime Minister had nominees on the JAC. The fact that the appointments of the non ex-officio members is in the hands of the Prime Minister is therefore wholly repugnant to the principle of separation of powers. This rationale should also apply in respect of powers to remove a member of the JAC, to determine the allowances of members of the JAC and to make regulations in respect of the JAC’s procedure.

4.

An alternative that may be explored, and which we recommend, is the setting up a parliamentary committee to oversee the appointment and removal of the non ex-officio members. Another alternative is to have the appointment of the first 5 non ex-officio members be undertaken by an alternative body, and subsequent appointments to be undertaken by the JAC itself.

5.

It is appropriate to remember that the 1988 judicial crisis was precipitated by power vested in the office of the Prime Minister. The findings of the Royal Commission of Inquiry on the Videoclip show that significant problems arose from the overemphasis on Executive power in the appointments process. Therefore, having nominees of the Prime Minister on the JAC fails to redress these problems. We do not agree that the appointment and removal of eminent persons be left to the Prime Minister. Rather, this should be placed in the hands of a parliamentary committee.

Clause 7

6.

The power to determine the allowances of the JAC should not be in the Prime Minister’s hands, for the reasons set out paragraph 3 above. We propose that all matters relating to funding for the JAC be approved and determined by Parliament. In this respect, Parliament could be aided by the recommendations of the parliamentary committee proposed in paragraph 4 above.

Clause 9

7.

For the reasons set out in paragraph 3 above, the Prime Minister should not have control over the dismissal of members of the JAC. Again, this should be undertaken by a parliamentary committee.

Clause 10

8.

We believe that sub-clause 1b(iii) needs to be amended to refer only to a situation where the person charged was in fact sentenced to a jail term of more than two years. Otherwise, it would seem that this clause imposes far too onerous a restriction on the members of the JAC.

9.

In addition, sub-clause (1) should include a provision that ex-officio members of the JAC vacate their post on the JAC automatically upon vacating their judicial office.

10.

On the Prime Minister’s power to appoint under sub-clause (2), we repeat our concerns stated in paragraph 3 above. This power to appoint should be given to a parliamentary select committee.

Clause 11

11.

We would propose that under the definition of “connected” in sub-clause (2), the category of connected persons should not be closed or limited to the instances set out therein, as various other relationships may fall under this category, for example, employer-employee relationships. The definition should be inclusive rather than exclusive.

Clause 13

12.

It appears from sub-clause (3) that a meeting of the JAC cannot be held in the event none of the judicial members are present.

Clause 14

13.

Sub-clause (2) has the effect of validating an improper and invalid meeting by the mere device of having minutes taken of the invalid meeting. This is extremely unusual, and would make nonsense of the other legal requirements of the Act, for example, clauses 11, 13(4), 13(5), and 24. This sub-clause would engender a lackadaisical attitude towards compliance or a disregard for the provisions of the Act. Sub-clause (2) should be deleted.

Clause 15

14.

This clause gives the JAC near absolute immunity from any breach of the other provisions of the proposed Act, and is against principles of transparency and accountability. It particularly enables the Commissioners to disregard with impunity their obligations under Clause 11. If the concern of the framers of the JAC Bill is that an appointment of a judge may be rendered defective by reason of any of the grounds set out in sub-clauses 15(a) – (c) and consequently that the judicial acts of that appointee may be rendered null and void, then such concern imay be specifically addressed by including a provision in the Bill to save such judicial acts irrespective of any defects in the appointment. The Bill should not seek to validate the appointment itself.

Clause 18

15.

Sub-clause 18(4) is inconsistent with Clause 16 and the independence of the JAC. The JAC should determine its own regulations and that of its committees. In this respect, we also recommend that clause 30 be amended to state the JAC may make its own regulations. This is to ensure the independence of the JAC from the Executive.

Clause 22

16.

The Bill specifies that the JAC shall select not less than 3 candidates for each vacancy in the High Court, and not less than 2 candidates for each vacancy in the superior courts other than the High Court. No rationale has been proffered for this minimum number of candidates that must be proposed by the JAC to the Prime Minister. In effect, the Prime Minister is asking for multiple choices. The JAC is charged with vetting and selecting the best candidate(s) according to select criteria. It would be a mockery of this process if the JAC is obliged to propose multiple candidates (i.e. more than the best candidate) especially if there may not be a sufficient number of candidates who have met the selection criteria. It may in any event not be practically feasible. This problem is further exacerbated by Clause 27 whereby the Prime Minister may require the JAC to propose a further 2 candidates for appointment to an office bearer position, the Federal Court and the Court of Appeal.

In effect, the Prime Minister is entitled to call for 4 candidates for each vacancy in an office bearer position, the Court of Appeal and Federal Court. This defeats the purpose of the JAC as a vetting and selection body.

Bar Council’s Proposal

In respect of all appointments, whether to the High Court, Court of Appeal, Federal Court or an office bearer position, we recommend that the JAC shall initially select 1 candidate. The Prime Minister then has a choice of accepting the candidate, rejecting the candidate or asking the JAC to reconsider its recommendation. This is Stage 1. The Prime Minister may only exercise the options of rejection or reconsideration once each in any given vacancy.

If the Prime Minister rejects the selection or requires reconsideration, the process moves to Stage 2. At this stage, the JAC again submits a name to the Prime Minister who has the following options: he may accept the selection; he may reject the selection (but only if he has not already used that power at Stage 1); or he may require reconsideration (but only if he has not already used that power at Stage 1). If asked to reconsider, the JAC may, after reconsideration, submit the same name to the Prime Minister.

Thereafter, if the Prime Minister rejects the selection (but only if he has not already used that power at Stage 2) or requires reconsideration (but only if he has not already used that power at Stage 2) the process moves on to Stage 3. At this stage, the panel again puts a name to the Prime Minister. This time he must accept the selection of the JAC’s candidate, or of the candidate selected in Stage 1 or Stage 2 who the panel was asked to reconsider. The Prime Minister cannot at this stage, select the person who has been earlier rejected.

Whenever the Prime Minister rejects a candidate or requires the JAC to reconsider a candidate, the Prime Minister must give his reasons for doing so in writing.

Alternative Proposal

As an alternative, we propose that the JAC be required to initially proffer up to two names to the Prime Minister for each vacancy. The JAC should not be required to produce two names initially since it is unlikely, especially in relation to office bearer positions, that there would be more than a few potential candidates. After the JAC’s vetting process, one candidate may be considered the better choice and it is this candidate’s name that should be put forward to the Prime Minister. After receiving the initial one or two names, the Prime Minister may require another name to be submitted but in that case, it is imperative that he must first give his reasons in writing.

We believe that one of these proposals ought to be adopted. The current proposal (in particular the fact that the Prime Minister is not required to give reasons for requiring further candidates) is wholly contrary to the need for accountability and transparency in the appointments process.

17.

We would also note here that a constitutional amendment will be required to put in this new consultation and selection mechanism. Under the present Constitutional provisions, the Prime Minister may theoretically consider any number of candidates. While he will need to consult with certain office bearers of the judiciary, he need not accept their views. It is his prerogative to do so. However, under the JAC Bill and the alternative proposals of the Bar Council, such prerogative is to be limited. A Constitutional amendment is required to enable this.

Clause 23

18.

The phrase “knowledge of the judiciary” in sub-clause (4) is ambiguous and has not been defined nor explained in the Explanatory Statement. We would in any event propose that the phrase be removed as it does not appear to be material to the selection of judges. We would also recommend that the said sub-clause be expanded to include diversity that reflects Malaysia’s social and racial make-up.

Clause 24

19.

We cannot see a reason for the disqualification of the Chief Justice as Chairman under sub-clause (1), and no explanation is proffered in the Explanatory Statement.

20.

As has been pointed out by former Chief Justice Tun Abdul Hamid Mohamed (see The New Straits Times, 12.12.2008), there may be difficulty in reaching the quorum requirement of seven in respect of appointments to the position of Chief Justice and President of the Court of Appeal. This is the case for example since in respect of selection for the position of Chief Justice, at least 4 other members (i.e. the President of the Court of Appeal, Chief Justice of Malaya, Chief Justice of Sabah and Sarawak and the Federal Court judge) are potential candidates and hence disqualified from sitting. We are of the view that this difficulty may be resolved by increasing the number of “eminent persons” on the JAC.

21.

As an alternative, we propose that a special selection panel be formed in respect of selection of office bearer positions in the judiciary. The panel should comprise the following:

(i)

(ii)

(iii)

the Chief Justice

the two most senior members of the superior courts who are not candidates for the position

all the eminent persons on the JAC

22.

In respect of the proposed voting by simple majority (sub-clause (5)), we propose that voting be by two-thirds majority of those present (with a minimum quorum of 7 members), in order to ensure that every recommendation or decision of the JAC will in effect receive the approval of the majority of the JAC’s members irrespective of the quorum present, for instance, where there are only 7 members present, a vote of 5 members is required to approve a candidate, and in effect the 5 also represents the majority of 9.

Clause 27

23.

We cannot see a rationale for this Clause, bearing in mind that the JAC would have proffered the best candidate(s) available at first instance. The Clause effectively allows the Prime Minister to disregard the considered decision of the JAC, bearing in mind that the Prime Minister is not required to give any reasons for his request of two additional names. As pointed out at paragraph 16, this effectively means that the Prime Minister is entitled to call for 4 candidates for each vacancy in an office bearer position, the Court of Appeal and Federal Court. This is so even when the JAC itself considers that only one or two candidates are suitable, which is likely in respect of office bearer positions in the Judiciary. For example, the JAC may be considering four candidates for the position of Chief Justice, as there is likely to be only a small pool of candidates available for this highest office. The present position effectively means that all such applicants for the position would have to be put forward by the JAC to the Prime Minister if he invokes Clause 27. Thus, Clause 27 renders the JAC redundant and gives the false impression that all the candidates are endorsed by the JAC. We reiterate our proposals set out at paragraph 16 above.

Clause 28

24

It is noted that the Bill presently remains silent on the requirement that the Prime Minister may only select a candidate who has been put forward by the JAC. It is arguable that this is implied. However given that this is one of the core principles of the Bill, it is imperative that it be expressly and unequivocally stated. This Clause should be amended to make clear that the Prime Minister can only recommend names which are proposed by the JAC.

Clause 29

25.

Our view is that the position of Judicial Commissioners ought to be abolished. However, if maintained, then they ought not to be required to put in an application to become High Court judges. Rather, Judicial Commissioners should automatically be considered by the JAC for appointment to the High Court and should undergo the same vetting process as all other candidates.

Clause 30

26

Once again, we cannot see the rationale for this Clause. The Prime Minister should not have control over the JAC’s procedures, and we refer to our comments in paragraphs 3 and 15 above.

Clause 37

27

Clause 37 must be removed. It usurps the functions of Parliament and allows the Prime Minister to legislate by ministerial edict. This would, in our view, be unconstitutional. The explanation given in the Explanatory Statement that the purpose is to remove “any difficulties that may arise in connection with the implementation of the proposed Act” is wholly unconvincing.

Part IIESTABLISHMENT OF THE JUDICIAL APPOINTMENTS COMMISSION4. Establishment of the Judicial Appointments Commission5. Constitution of the Commission6. Tenure of office7. Allowances8. Temporary exercise of functions of Chairman9. Revocation of appointment and resignation10. Vacation of office11. Disclosure of interest12. Protection from personal liability13. Meetings14. Minutes15. Validity of acts and proceedings16. Procedure17. Member of Commission to devote time to business of Commission18. Committees19. Secretary to the Commission20. Officers and servants of the Commission

Part IIIFUNCTIONS AND POWERS OF THE COMMISSIONClause21. Functions and powers of the Commission

Part IVSELECTION TO THE OFFICE OF THE CHIEF JUSTICE OF THE FEDERAL COURT,THE PRESIDENT OF THE COURT OF APPEAL, THE CHIEF JUDGES OF THEHIGH COURTS, JUDGES OF THE FEDERAL COURT, COURT OF APPEAL,HIGH COURTS AND JUDICIAL COMMISSIONERS22. Selection process23. Selection criteria24. Selection meeting25. Disqualification from selection meeting26. Report on recommendation27. Request for further selection by the Prime Minister28. Tender of advice29. Judicial commissioners may apply to be High Court judges

Part VGENERAL30. Regulations31. Annual report32. Obligation of secrecy33. Giving false information to the Commission34. Influencing or attempting to influence the Commission35. Institution and conduct of prosecution36. Public servant37. Prevention of difficulties or anomalies

Judicial Appointments Commission 3An Act to provide for the establishment of the Judicial AppointmentsCommission in relation to the appointment of judges of the superiorcourts, to set out the powers and functions of such Commission,to uphold the continued independence of the judiciary, and toprovide for matters connected therewith or incidental thereto.[ ]ENACTED by the Parliament of Malaysia as follows:

Part IPRELIMINARY

Short title, commencement and application1. (1) This Act may be cited as the Judicial AppointmentsCommission Act 2008.(2) This Act comes into operation on a date to be appointedby the Prime Minister by notification in the Gazette.(3) This Act applies to the appointments of judges of theFederal Court, Court of Appeal and High Court and judicialcommissioners and shall include the appointments of the ChiefJustice of the Federal Court, the President of the Court of Appeal,the Chief Judge of the High Court in Malaya, the Chief Judgeof the High Court in Sabah and Sarawak made on or after thecommencement of this Act.

Upholding independence of judiciary2. The Prime Minister must uphold the continued independenceof the judiciary and must have regard to—(a) the need to defend that independence;(b) the need for the judiciary to have the support necessaryto enable them to exercise their functions;(c) the need for public interest to be properly represented inregard to matters relating to the judiciary, the administrationof justice and related matters.

Interpretation3. In this Act, unless the context otherwise requires—“member of the Commission” means the person appointed undersection 5;“judges of the superior courts” means judges of the HighCourt, Court of Appeal and Federal Court and shall include theChief Justice of the Federal Court, the President of the Court ofAppeal, the Chief Judge of the High Court in Malaya and theChief Judge of the High Court in Sabah and Sarawak;“superior courts” means the Federal Court, the Court of Appeal,the High Court in Malaya and the High Court in Sabah andSarawak except where expressly stated otherwise;“selection meeting” means a meeting called to consider theselection of persons qualified to fill a vacancy in the superiorcourt;“Chairman” means the Chairman of the Commission;“Secretary” means the Secretary to the Commission;“Commission” means the Judicial AppointmentsCommission.

Part IIESTABLISHMENT OF THE JUDICIAL APPOINTMENTSCOMMISSION

Establishment of the Judicial Appointments Commission4. The Judicial Appointments Commission is established.

Constitution of the Commission5. (1) The Commission shall consist of the followingmembers:(a) the Chief Justice of the Federal Court who shall be theChairman;(b) the President of the Court of Appeal;(c) the Chief Judge of the High Court in Malaya;(d) the Chief Judge of the High Court in Sabah andSarawak;(e) a Federal Court judge to be appointed by the PrimeMinister; and(f) four eminent persons, who are not members of theexecutive or other public service, appointed by the PrimeMinister after consulting the Bar Council of Malaysia,the Sabah Law Association, the Advocates Associationof Sarawak, the Attorney General of the Federation, theAttorney General of a State legal service or any otherrelevant bodies.(2) The appointment of members of the Commission and theduration of the appointment shall be published in the Gazette.

Tenure of office6. (1) Members of the Commission appointed under paragraphs5(1)(e) and (f) shall hold office for a period of two years and iseligible for reappointment but no member shall hold office formore than two terms.(2) A member of the Commission appointed under paragraph5(1)(f) shall be disqualified from consideration for any appointmentto the superior court during the tenure of his office as a memberand for a term of two years after the cessation of his appointmentas a member of the Commission.

Allowances7. The members of the Commission shall be paid such allowancesas the Prime Minister may determine.Temporary exercise of functions of Chairman8. (1) The President of the Court of Appeal shall act as theChairman of the Commission for the period when—(a) the office of the Chairman is vacant;(b) the Chairman is absent from duty or from Malaysia; or(c) the Chairman is, for any other reason, unable toperform his functions.(2) The President of the Court of Appeal shall, during the periodin which he is performing the function of the Chairman under thissection, be deemed to be the Chairman of the Commission.

Revocation of appointment and resignation9. (1) The appointment of any member appointed under paragraph5(1)(f) may at any time be revoked by the Prime Minister withoutassigning any reason therefor.(2) A member appointed under paragraph 5(1)(f) may at anytime resign his office by a written notice addressed to the PrimeMinister.

Vacation of office10. (1) The office of a member of the Commission shall bevacated if—(a) he dies;Judicial Appointments Commission 7(b) there has been proved against him, or he has been convictedof, a charge in respect of—(i) an offence involving fraud, dishonesty or moralturpitude;(ii) an offence under any law relating to corruption;or(iii) any other offence punishable with imprisonment(in itself only or in addition to or in lieu of afine) for more than two years;(c) he becomes a bankrupt;(d) he is of unsound mind or is otherwise incapable ofdischarging his duties;(e) he absents himself from three consecutive meetings ofthe Commission without leave of the Chairman or, inthe case of the Chairman, without leave of the PrimeMinister;(f) his appointment is revoked by the Prime Minister; or(g) his resignation is accepted by the Prime Minister.(2) Where the office of a member of the Commission is vacatedpursuant to subsection (1), the Prime Minister may appoint anyperson he deems fit to fill up the vacancy thereby created forthe remainder of the term vacated by the member or for theinterim period until a new person is appointed to the office orthe position held by that member prior to his vacating the officeor position.(3) Any period of appointment made under subsection (2) shallnot be taken into consideration in the reckoning of the period ofappointment specified in section 6.

Disclosure of interest11. (1) Any member of the Commission related or connectedto any candidate being considered for selection shall disclose tothe Commission his relationship to the candidate.8 Bill(2) A disclosure under subsection (1) shall be recorded inthe minutes of the meeting of the Commission in which thematter is discussed or deliberated and, after the disclosure, themember—(a) shall not be present in any discussion or deliberation, ordecision of the Commission when the matter is discussedor deliberated, or decided upon; and(b) shall be disregarded for the purpose of constituting aquorum of the Commission when the matter is discussedor deliberated, or decided upon.(3) For the purpose of this section—“related”, in relation to a member of the Commission,means—(a) a spouse or former spouse of the member of theCommission;(b) a brother or sister of the member of the Commission;(c) a brother or sister of a spouse or a former spouse of themember of the Commission;(d) a lineal ascendant or descendant of the member of theCommission;(e) a lineal ascendant or descendant of a spouse or a formerspouse of the member of the Commission;(f) a spouse or a former spouse of any person referred to inparagraph (b), (c), (d) or (e);(g) a lineal descendant of a person referred to in paragraph(b), (c) or (f);(h) an uncle, aunt or a cousin of the member of the Commission,or an uncle, aunt or a cousin of a spouse or a formerspouse of the member of the Commission; or(i) a lineal ascendant or descendant of the person referredto in paragraph (h);“connected”, in relation to a member of the Commission,means—(a) a person who is a nominee of the member of theCommission;Judicial Appointments Commission 9(b) a partner of the member of the Commission;(c) a former partner of the member of the Commission;(d) a spouse of a partner or former partner of the memberof the Commission;(e) a former spouse of a partner or former spouse of a formerpartner of the member of the Commission;(f) a person practising in a firm in which the member of theCommission or his nominee—(i) is a partner;(ii) is a person in charge or in control of its businessor affairs;(iii) is a consultant; or(iv) is employed in;(g) a person who is a director in any corporation in whichthe member of the Commission or his nominee—(i) is a director; or(ii) is in charge or in control of its business or affairs;or has or have a controlling interest or shares tothe total value of not less than thirty per centumof the total issued capital of the corporation; or(h) a trustee of a trust under which the member of theCommission or the member’s family is a beneficiary.(4) Any member of the Commission who fails to disclose hisinterest as required under subsection (1) commits an offence andshall, on conviction, be liable to a fine not exceeding one hundredthousand ringgit or to imprisonment for a term not exceeding twoyears or to both.

Protection from personal liability12. No member of the Commission shall incur personal liability forany loss or damage caused by any act or omission in administeringthe affairs of the Commission, unless the loss or damage isoccasioned by an intentionally wrongful act or omission on hispart.

Meetings13. (1) The Commission shall meet at least once a month atsuch time and place as may be determined by the Chairman.(2) At least ten days notice in writing or by electronic mailshall be given to the members of the Commission.(3) The Chairman shall preside at any meeting of the Commissionand if for any reason the Chairman is unable to attend, the nextmost senior judge shall be the chairman.(4) The quorum of the Commission shall be seven includingthe Chairman.(5) If the quorum as provided by subsection (4) is not presentdue to members being disqualified under section 11 or 25, thenthe quorum shall not be less than five.(6) Every member of the Commission present shall be entitledto one vote by secret ballot and in the event of a tie in the numberof votes casted, the Chairman or the member of the Commissionpresiding as the Chairman for the meeting shall have a castingvote.(7) The Commission may invite any person to attend a meetingof the Commission for the purpose of advising it on any matterunder discussion, but that person shall not be entitled to vote atthe meeting.

Minutes14. (1) The Commission shall cause minutes of all its meetingsto be maintained and kept in a proper form.(2) Every meeting of the Commission in respect of theproceedings of which minutes have been so made shall be deemedto have been duly convened and held and all members thereat tohave been duly qualified to act.

Judicial Appointments Commission 11Validity of acts and proceedings15. No act done or proceeding taken under this Act shall bequestioned on the ground of—(a) a vacancy in the membership of, or a defect in theconstitution of, the Commission;(b) the contravention by any member of the Commission ofthe provisions of section 11; or(c) an omission, a defect or an irregularity not affecting themerits of the case.

Procedure16. Subject to this Act, the Commission shall determine its ownprocedure.

Member of Commission to devote time to business ofCommission17. Every member of the Commission shall devote such time tothe business of the Commission as may be necessary to dischargehis duties effectively.

Committees18. (1) The Commission may set up any committee it deemsfit to assist in the implementation of its functions.(2) The Commission may appoint any of its members to bethe chairman or members for the committee.(3) The Commission may at any time terminate or make anychanges in the composition of the members of the committee.(4) Subject to any regulations made by the Prime Minister,a committee set up by the Commission may determine its ownprocedure.(5) The chairman of a committee shall cause the minutes ofthe meeting to be maintained and kept in a proper form and thecopies of the minutes of all meetings shall be submitted to themembers of the Commission as soon as may be.(6) A committee may invite any person who is not a memberof the committee to attend any meeting of the committee for thepurpose of advising it on any matter under discussion but thatperson is not entitled to vote at the meeting.

Secretary to the Commission19. (1) There shall be appointed a Secretary to the Commissionby the Prime Minister from amongst members of the generalpublic service of the Federation for such period and on suchterms and conditions as may be specified in the instrument ofappointment.(2) The Secretary shall be responsible for—(a) the general conduct, administration and management ofthe functions and activities of the Commission; and(b) the carrying out of the decisions of the Commission.(3) The Secretary shall perform such further duties as theCommission may from time to time direct.(4) In discharging his duties the Secretary shall act under thegeneral authority and direction of the Commission.

Officers and servants of the Commission20. (1) There shall be appointed such number of officers andservants of the Commission as may be necessary from amongstmembers of the general public service of the Federation for suchperiod and on such terms and conditions as may be specifiedin their instruments of appointment to assist the Commission incarrying into effect the provisions in this Act.(2) Every officer and servant of the Commission shall be subjectto the direction, control and supervision of the Secretary.

Part IIIFUNCTIONS AND POWERS OF THE COMMISSION

Functions and powers of the Commission21. (1) The functions of the Commission are—(a) to select suitably qualified persons who merit appointmentas judges of the superior court for the Prime Minister’sconsideration;(b) to receive applications from qualified persons for theselection of judges to the superior court;(c) to formulate and implement mechanisms for the selectionand appointment of judges of the superior court;(d) to review and recommend programmes to the PrimeMinister to improve the administration of justice;(e) to make other recommendations about the judiciary;and(f) to do such other things as it deems fit to enable it toperform its functions effectively or which are incidentalto the performance of its functions under this Act.(2) The Commission shall have all such powers as may benecessary for, or in connection with, or reasonably incidental to,the performance of its functions under this Act.

Part IVSELECTION TO THE OFFICE OF THE CHIEF JUSTICE OF THEFEDERAL COURT, THE PRESIDENT OF THE COURT OF APPEAL,THE CHIEF JUDGES OF THE HIGH COURTS, JUDGES OF THEFEDERAL COURT, COURT OF APPEAL, HIGH COURTS ANDJUDICIAL COMMISSIONERS

Selection process22. (1) On receiving a request, the Commission must notifythe members of the Commission and prepare for a selectionmeeting.(2) In a selection meeting, the Commission shall apply theselection process as prescribed by regulations made under thisAct and—(a) select not less than three persons for each vacancy inthe High Court; or(b) select not less than two persons for each vacancy wherethe vacancy is for judges of the superior courts otherthan the High Court.

Selection criteria23. (1) A candidate is qualified for selection if he fulfils therequirement under Article 123 of the Federal Constitution.(2) The Commission in selecting candidates shall take intoaccount amongst others, the following criteria:(a) integrity, competency and experience;(b) objective, impartial, fair and good moral character;(c) decisiveness, ability to make timely judgments and goodlegal writing skills;(d) industriousness and ability to manage cases well; and(e) physical and mental health.(3) A person who is a serving judge or judicial commissionermust not be appointed if he has three or more pending judgmentsor unwritten grounds of judgments that are overdue by sixty daysor more from the date they are deemed to be due.(4) The Commission in selecting candidates must also takeinto account the need to encourage diversity in the range of legalexpertise and knowledge in the judiciary.

Selection meeting24. (1) The Chairman shall also be the chairman for the selectionmeeting except where the selection meeting is to consider theselection of persons for vacancies in the High Courts.Judicial Appointments Commission 15(2) The Chairman may nominate a judge from amongst themembers of the Commission to be the chairman for a selectionmeeting to consider the selection of persons for vacancies in theHigh Courts.(3) Where the Chairman is incapacitated, disqualified orunavailable, the next most senior judge on the Commission whois not disqualified and is available will be the chairman of theselection meeting.(4) The quorum for every selection meeting shall be seven.(5) Any vote taken at the selection meeting must be made bysecret ballot and by majority decision.

Disqualification from selection meeting25. A member of the Commission is disqualified from attendingor participating in a selection meeting if he is being consideredfor selection or where section 11 applies.

Report on recommendation26. (1) After making its selection, the Commission shall submitto the Prime Minister a report which shall—(a) state who has been selected by the Commission tobe recommended for the appointment to the officeconcerned;(b) state the reasons for such selection; and(c) contain any other information the Commission deemsnecessary to bring to the knowledge of the PrimeMinister.(2) After submitting the report, the Commission shall provide anyfurther information as may be required by the Prime Minister.

Request for further selection by the Prime Minister27. The Prime Minister may, after receiving the report under section26, request for two more names to be selected and recommendedill for his consideration with respect to any vacancy to the office ofthe Chief Justice of the Federal Court, the President of the Courtof Appeal, the Chief Judge of the High Court in Malaya, theChief Judge of the High Court in Sabah and Sarawak, judges ofthe Federal Court and the Court of Appeal, and the Commissionshall, as soon as may be practicable, comply with the requestin accordance with the selection process as prescribed in theregulations made under this Act.

Tender of advice28. Where the Prime Minister has accepted any of the personsrecommended by the Commission, he may proceed to tenderhis advice in accordance with Article 122b of the FederalConstitution.

Judicial commissioners may apply to be High Court judges29. All judicial commissioners appointed before the cominginto operation of this Act may file their applications with theCommission if they are desirous of being selected as High Courtjudges in accordance with the provisions of this Act within thetime and manner specified by the Commission.

Part VGENERAL

Regulations

30. The Prime Minister may, on the recommendation of theCommission, make regulations for the purpose of carrying out orgiving effect to the provisions of this Act, including regulationsrelating to the selection process and method to be applied by theCommission in making its selection and recommendation underthis Act.

Annual report31. (1) The Commission must prepare an annual report everyyear.(2) The Commission shall, not later than the first meetingof Parliament of the following year, submit its annual report toParliament of all its activities during the year to which the reportrelates.

Obligation of secrecy32. (1) No member of the Commission and officers and servantsof the Commission, whether during or after his tenure of office oremployment, shall disclose any information or document obtainedby him in the course of his duties.(2) No other person who has by any means access to anyinformation or documents relating to the affairs of the Commissionshall disclose such information or document.(3) Where any person ceases to be a member of the Commission,he shall return to the Secretary all papers and documents entrustedto him by virtue of his membership of the Commission.(4) Any person who contravenes subsection (1), (2) or (3)commits an offence and shall, on conviction, be liable to a finenot exceeding one hundred thousand ringgit or to imprisonmentfor a term not exceeding two years or to both.

Giving false information to the Commission33. Any person who wilfully gives to the Commission anyinformation which is false or misleading in support of anycandidacy for selection under this Act commits an offence andshall, on conviction, be liable to a fine not exceeding one hundredthousand ringgit or to imprisonment for a term not exceeding twoyears or to both.

Influencing or attempting to influence the Commission34. Any person who, otherwise than in the course of his duty,directly or indirectly by himself or by any other person in anymanner whatsoever influences or attempts to influence anydecision of the Commission or any member thereof commits anoffence and shall, on conviction, be liable to a fine not exceedingone hundred thousand ringgit or to imprisonment for a term notexceeding two years or to both.

Institution and conduct of prosecution35. No prosecution in respect of any offence under this Actshall be instituted except by or with the consent of the PublicProsecutor.

Public servant36. Every member of the Commission, the Secretary or anyother officer or servant of the Commission, while discharginghis duties as such member, officer or servant shall be deemedto be a public servant within the meaning of the Penal Code[Act 574].

Prevention of difficulties or anomalies37. (1) The Prime Minister may, whenever it appears to himnecessary or expedient to do so, whether for the purpose ofremoving difficulties or preventing anomalies in consequence ofthe enactment of this Act, by order published in the Gazette makesuch modifications to any provisions of this Act as he thinksfit.(2) The Prime Minister shall not exercise the powers conferredby this section after the expiration of two years from the date ofcoming into operation of this Act.(3) In this section, “modifications” includes amendments,additions, deletions, substitutions, adaptations, variations, alterationand non-application of any provisions of this Act.

EXPLANATORY STATEMENTThis Bill seeks to provide for the establishment of the Judicial AppointmentsCommission, to set out the powers and functions of such Commission, andto provide for matters connected therewith or incidental thereto. This Bill isintroduced as part of the Government initiative to improve the process ofappointment of judges under the Federal Constitution. This Bill will complementthe existing provisions of the Federal Constitution, making the process morecollective and transparent whilst preserving the Prime Minister’s prerogativein judicial appointments.Judicial Appointments Commission 19Part I2. Part I of the proposed Act contains preliminary matters.Clause 1 deals with the short title, commencement and application.The Act proposed by this Bill seek to provide a clearly defined selectionprocess to be applied by the Judicial Appointments Commission for theappointment of persons to the office of the Chief Justice of the Federal Court,the President of the Court of Appeal, the Chief Judge of the High Court inMalaya, the Chief Judge of the High Court in Sabah and Sarawak, judges ofthe Federal Court, Court of Appeal, High Court or a judicial commissionerpursuant to Article 122b and Article 122ab respectively.Clause 2 states the need to uphold the independence of the judiciary.Clause 3 contains the definitions of certain expressions used in the Act.Part II3. Part II of the proposed Act contains provisions on the establishment ofthe Judicial Appointments Commission (“the Commission”).Clauses 4 and 5 seek to provide for the establishment of the Commissionand the constitution of the Commission.Clause 6 contains provisions on the tenure of office for certain membersof the Commission whilst clause 7 provides for the payment of allowancesto members of the Commission.Clause 8 provides for the temporary exercise of functions of theChairman.Clause 9 pertains to the revocation of appointment of certain members ofthe Commission and their resignation.Clause 10 spells out the circumstances in which the office of a member ofthe Commission becomes vacant.Clause 11 provides for the obligation to disclose the relationship of anymember to any candidate being deliberated. The clause also spells out therelationship required to be disclosed and the penalty for non-disclosure.Clause 12 seeks to protect members of the Commission from incurringpersonal liability in administering the affairs of the Commission.Clause 13 provides for procedures of the meetings of the Commission.All meetings of the Commission shall be chaired by the Chief Justice of theFederal Court who is the Chairman. However, if he is unable to attend forwhatever reasons, the next most senior judge shall be the chairman.20 BillClause 14 provides that minutes of all meetings of the Commission shallbe maintained and kept in proper form.Clauses 15, 16 and 17 seek to provide for the validity of acts and proceedingsundertaken under the proposed Act, that the Commission shall determine itsown procedure and that the members of the Commission shall devote suchtime to the business of the Commission in order to discharge their dutieseffectively.Clause 18 seeks to enable the Commission to establish committees to assistin the performance of its functions.Clauses 19 and 20 provide for the appointment of the Secretary, officersand servants of the Commission.Part III4. Part III of the proposed Act contains provision relating to the functionsand powers of the Commission.Clause 21 sets out the functions of the Commission which are asfollows:(a) to select suitably qualified persons who merit appointment as judgesof the superior court for the Prime Minister’s consideration;(b) to receive applications from qualified persons for the selection ofjudges to the superior court;(c) to formulate and implement mechanisms for the selection and appointmentof judges of the superior court;(d) to review and recommend programmes to the Minister to improve theadministration of justice;(e) to make other recommendations about the judiciary; and(f) to do such other things as it deems fit to enable it to perform itsfunctions effectively or which are incidental to the performance ofits functions under the proposed Act;Part IV5. Part IV of the proposed Act relates to the selection process.Clause 22 provides for the process of selection upon receipt of a requestto the Commission.Clause 23 provides for selection criteria.Clause 24 relates to selection meeting.Judicial Appointments Commission 21Clause 25 provides for the disqualification of a member of the Commissionfrom a meeting if he is being considered for selection or if clause 11applies.Clause 26 deals with recommendations to the Prime Minister.Clause 27 requires the Commission to initiate the selection process onceagain should the Prime Minister requests for an additional two names to berecommended to him to fill any vacancy to the office of Chief Justice ofthe Federal Court, the President of the Court of Appeal, the Chief Judge ofthe High Court in Malaya, the Chief Judge of the High Court in Sabah andSarawak, judges of the Federal Court and the Court of Appeal.Clause 28 states that the Prime Minister may tender his advice in accordancewith Article 122b of the Federal Constitution if he has accepted any of thepersons recommended by the Commission.Clause 29 provides that judicial commissioners appointed before the cominginto operation of the proposed Act may apply to be High Court judges.Part V5. Part V of the proposed Act contains general provisions.Clause 30 provides for the power to make regulationsClause 31 provides for the submission of an annual report to Parliament.Clause 32 prohibits the disclosure of information relating to the affairs ofthe Commission.Clause 33 prohibits any person from wilfully giving any false or misleadinginformation to the Commission with regards to any candidacy.Clause 34 seeks to make it an offence for any person, otherwise than inthe course of his duty, directly or indirectly by himself or by any other personto influence or attempts to influence any decision of the Commission or anymember of the Commission.Clause 35 seeks to provide for the institution and conduct ofprosecution.Clause 36 provides that every member of the Commission, the Secretary,officer or servant of the Commission, shall be deemed to be a public servantwithin the meaning of the Penal Code while discharging his duties as such.Clause 37 empowers the Prime Minister to make an order for the purpose ofremoving any difficulties that may arise in connection with the implementationof the proposed Act.22 BillFINANCIAL IMPLICATIONSThis Bill will involve the Government in extra financial expenditure the amountof which cannot at present be ascertained.[PN(U2)2675]

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